March 23, 2012

"The second is that the court could strike it down anyway.... The law is a completely valid exercise of Congress' Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won't put us back in those days as if by magic. Nor does it amount to much of an argument. So that brings us to the really interesting question: Will the Court's five conservatives strike it down regardless?"

Striking down the constitutionality of the individual mandate portion ObamaCare would seem serious blow against Obama's reelection as it would reflect a broken promise to his core. On the otherhand, if just the individual mandate part fails and the rest stands, those who would be required to start paying could still get a free ride. Thus, the outcome is win-win for those who want more free stuff as their core value. It's backlash against the people who want free stuff that Obama has to keep a lid on.

Lithwick's essay, like Greenhouse's, is clearly part of the left's effort to pre-emptively undermine the legitimacy of a possible Supreme Court ruling against the constitutionality of the ACA. (See also the attacks on Thomas's participation in the case.) Even understanding that, though, the arrogance is mind-boggling. I wonder if she ponders the irony of finding herself as an intellectual bedfellow of Orville Faubus and George Wallace.

I am anxious to hear what limits on government power exist in her world.

If they can force you to buy health insurance, which cannot be sold over state lines, and have the Commerce Clause back it up while swearing it is not a tax but using the authority of the their taxation authority --- where does it end?

I've heard it asked repeatedly: Why did the Founding Fathers write a Constitution explicit in limiting government powers, but then include a clause that undoes every limitation?

"To be sure, these people all have some degree of intellectual authority owing to their extensive experience studying or reporting on legal matters. That is why we go through the trouble of refuting their nitwitted arguments rather than simply declaring them nitwitted and being done with it."

This is inefficient. If one ends up in the same place, why bother going through the elaborate exercise of "refuting their nitwitted arguments rather than simply declaring them nitwitted?"

Just because some liberals think Lithwick and Greenhouse have worthy opinions doesn't mean that they do; nor are liberals going to be persuaded that Lithwick and Greenhouse are wrong, nor are, hopefully, the individual justices of the court going to pay any attention to this kerfuffle either.

Taranto recognizes this: "But here's where the Lithwick approach gets really bizarre. Whatever intellectual authority she may have, her legal authority is equal to that of a street vagrant. That is to say, while she is free to opine on constitutional questions and may even have informed opinions (though she has placed that in considerable doubt), she cannot decide whether ObamaCare is constitutional. Only judges, and ultimately the justices of the Supreme Court, can do that."

He's right, of course. So why not cut to the chase, and write "some ditsy, self-impressed liberal writing for the Post think the Court will listen to her argument in defense of ObamaCare, but she's wasting everyone's time, including her own.

What I find most damning is that she acknowledges that the pre-New Deal courts would have found the law unconstitutional. Since there have been no relevant amendments since then, the only thing that changed to make it now constitutional would be the opinion of the majority of the court.

By that reasoning, if the opinion of the majority has changed again, then the mandate would again be unconstitutional.

In fact, by that reasoning the court is infallible, since no matter what decision the majority comes to, it defines what is constitutional, regardless of what is actually written in the Constitution.

Obamacare is clearly not constitutional under the Commerce Clause because it subjects not buying insurance and thus not engaging in commerce subject to the Commerce Clause. The Commerce Clause will have no limit because it will cover everything -- commerce and not commerce -- if Obamacare is constitutional under the Commerce Clause. I think logic will prevail.

The concern, I think, for we who oppose Obamacare is that the Court could very well find some other part of the Constitution that allows the law.

"On the otherhand, if just the individual mandate part fails and the rest stands"

IANAL, but my understanding is that in writing this monstrosity they neglected to include a very standard severability clause. As a result, if ANY part is found unconstitutional, the entire thing is tossed. So I don't think the possibility for your scenario exists. Again, IANAL. Somebody like Althouse (or one of the sycophantic hillbilly lawyers here that constantly suck up to her) is the person to shed light on this.

The individual mandate itself is, as Groucho would say, a mere bagatelle. Being forced to buy health insurance won't wreck too many lives. What comes after is far more insidious and destructive of the liberty we have treasured in this country. Once the government is on the hook for your health maintenance costs, there will be no limit to the number of behaviors that lawmakers may find too costly to permit. Mountain climbing, parasailing, motorcycling--hell, bicycling-- gun ownership, all will be found to be too risky for the benighted taxpayer to bear the cost, and they will be banned. And the legal basis will be the Commerce Clause. If the individual mandate is permitted under the Commerce Clause, then anything you do that may have an effect on your health will be subject to regulation by the federal government. Shorter, everything you do can be and will be regulated by an all-powerful federal government. Liberals scoff and say this can never happen, but I will point to the shredding of the First Amendment by this administration as a mere opening shot in the battle. I simply can't believe that the justices, liberal or conservative, can permit this to occur. If they do, they risk actual rebellion.

Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care...you just receive the care without paying for it, driving the cost up for the rest of us.

"Why don't you tell us what the real deal is, instead of constantly sniping from the sidelines? Get on the field where you can be hit, son!"

Short answer: The quality of play isn't up to my standard and isn't worth my time.

Slightly longer answer: The details of the essential health benefits are extensive, and while they can be described (HHS just issued its final rules just last week), it's a demonstrable fact morons like you are beyond persuasion. The "absence" of a "public option" (as if the health exchange isn't a public option) will always mean to you that "The mandate was always a stupid idea without a public option," and "(w)hy should you have to buy shitty insurance? I haven't time to unwind willful tendentiousness nor, frankly, do I care enough.

machine said... Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care...you just receive the care without paying for it, driving the cost up for the rest of us.

When did "conservatives" start siding with the freeloaders?

Ah, but ObamaCare doesn't just mandate that I buy insurance it also mandates what kind of insurance I have to buy. So if all I want is to cover myself for catastrophic care and pay a high deductible for routine visits and incidences, and certainly not pay for abortificients, it is up to the HHS Secretary to determine whether I'm "allowed" to do that.

So you see, I'm not looking to be a freeloader, but I'm forced to pay premimums to cover other people who want to freeload off me!

IANAL, but my understanding is that in writing this monstrosity they neglected to include a very standard severability clause

Not quite accurate. They didn't neglect to include it. It was originally drafted with such a clause, and said clause was deliberately removed.

Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care

Nonsense. It's perfectly possible to die before seeking and receiving health care. A self-employed, uninsured man of my acquaintance didn't see a doctor once between his graduation from college and his death from a stroke at age 43. Hated the whole medical profession, refused to use their services. Was pronounced dead on the golf course where he fell.

I guess you could argue that he engaged in the market for health care because he bought and used styptic pencils and aspirin, but there's no coherent argument to be made that he freeloaded on a medical system paid for by others. If he had been forced to pay for insurance, all that would have happened is that others would have been freeloading on his premiums, much like they freeloaded on the taxes he paid for Medicare and Medicaid.

The problematic thing is that in order to survive Obamacare must have a functioning economy in which to feed. All kinds of new things must be found constitutional to get around that. Just wait and see how that document can adapt,... before it goes extinct.

Having to rest my password on Google every time I post a comment, even though I didn't change it, is really annoying.

Garage should have the pleasure of living with a real, unsubsidized "public option." I would choose a private plan, somewhat on the lines of the French system, and let them compete. The only problem with the French system is that the damned Brits won't go home to their idyllic single payer public option plan. They all want to stay in France with the private plan.

"Ever consider that some uninsured folks might get medical treatment and pay for the service in cash? That means they are not freeriders."

True.

But the argument *really* isn't about "free-riders," is it?

There's no discussion in the US Constitution regarding "free-riders," but plenty regarding freedom.

One obvious test of the Liberal's commitment to resolving the "free-rider" problem is welfare.

They've no problem creating, expanding, and taxing others to fund a program that pays people to be free-riders. So, here's a case where the Liberal not only doesn't have a problem with free-riders, the Liberal creates a program to foster and reward *more* free-riders.

Other tests of the Liberal's commitment to the free-rider problem are national security and public safety.

If, in the interest of national security, the federal government mandated individual military service (as in the past), the Liberal would scream bloody terror come to Jesus like a stuck pig (yes, so too would others).

If, in the interest of public safety, the federal government mandated individuals purchase and train on personal firearms (like Liberals *suggest* the 2nd Amendment *really* means), the Liberal would scream bloody terror come to Jesus like a stuck pig.

The Liberal's commitment to solving the free-rider problem lies only to the extent the Liberal favors the necessary or resulting expansion of public power consistent with the Liberal's policy objectives.

Another notable test of the Liberal's commitment to the free-rider problem is income taxation.

The Liberal has no problem with an unequal tax-burden carried by some, to allow others to be free-riders on income taxation.

The Liberal doesn;t mind this free-rider problem because, to the Liberal, somehow the unequal income tax burden ameliorates some larger, *subjective* social problem than free-riders.

That the Liberal has a policy preference that fosters free-riders on the nation's income tax system is of no meaningful consequence to him, because the contradiction necessarily results from his effort to fix a problem he as deemed larger and more critical than free-riders on the nation's income tax system.

But when government has a chance to seize control of 17% (and growing) of the nation's economy in the name of fixing the "free-rider" problem, the Liberal stands and cheers, and mocks conservatives for "siding with freeloaders."

All this the while the Liberal supports a policy that creates other freeloaders - lest the Liberal fail to acknowledge the massive subsidies offered by the federal government through the exchanges.

"Why was the severability clause removed? How would that benefit the dems?"

Two reasons.

First, the brainiacs that Nancy Pelosi, Harry Reid and Barack Obama fervently believe themselves to believe didn't believe any provision of the ACA would be deemed unconstitutional, so they saw no need for the SC. Idiot Democrats particularly mocked the notion the individual mandate was prospectively unconstitutional, for example.

Second, on the very off-chance the brainiacs might actually be wrong, they didn't think any court would have the backbone or balls to risk overturning the entirety of their masterpiece POS because one provision or another was unconstitutional. In short, they are daring the court to do its job.

So far, they've been wrong on both counts enough to find themselves before the USSC.

Your position, and the position of insurance conglomerates, and the politicians they pay off, are identical. They are laughing at idiots like you all the way to the bank, as they scheme to drain you for every penny they can, while denying you everything you paid for. This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to. Why? We're a stupid country full of stupid people like you.

So if any tiny part of ObamaCare is unconstitutional, the whole thing is unconstitutional. The bill is extremely complex and was hastily thrown together. The probability of it not being perfectly constitutional due to human error in crafting it (comparable to a bug in a large, complex computer program) would seem to be large.

"Your position, and the position of insurance conglomerates, and the politicians they pay off, are identical. They are laughing at idiots like you all the way to the bank, as they scheme to drain you for every penny they can, while denying you everything you paid for. This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to. Why? We're a stupid country full of stupid people like you."

And you wondered why I don't engage? I don't have enough time to address all the tendentious stupidity wrapped up in that manifesto of ignorance (let alone it completely ignores the fact you do not know that Medicare is subsidized).

I must confess, over the internet, it is, momentarily, hilarious that this is the sum total of your knowledge of health care in the United States today. Thanks for the chuckle.

Then, the reality that living, breathing voters actually think this is "how it is" reasserts itself, and I am dumbstruck at the futility of information in the face of willful dishonesty.

All I can say is, the worst lies are the ones you tell yourself.

That's always been true, and it will never change.

If you care for truth, educate yourself. The facts are readily available.

However, if you're comfortable in your ignorance, as I suspect, carry on. I haven't time for idiots.

Why was the severability clause removed? How would that benefit the dems?

It has been reported that removal of the severability clause was demanded by the insurance industry lobbyists in exchange for the lobby's support. They wanted to make sure the mandate could not be struck down independently from the rest of the law and give them a whole bunch of expensive requirements and no new income stream.

The Democrats agreed to this because several vulnerable Senate Democrats were not willing to face hostile ads financed by the insurance industry in the 2010 elections — especially Ben Nelson. So the non-severability was, effectively, a condition of passage.

The Administration is now backstabbing the insurance industry by arguing the mandate should be severable, but, well, what else would you expect? They don't care about the insurers for their own sake.

A scant majority of us citizens are foolish enough to believe that a government slowly encroaching on every facet of their lives, from great to small will somehow avoid literally enslaving those selfsame voters.

No warning is clear enough, nor sounded in time, nor heard at all by these many, slouching towards their owners, offering their wrists to be chained in exchange for a few morsels.

That some leftist lawyer can invent a new definition for commerce that means its opposite is no great feat. It is a hideous and shameful ability, lying by altering the very meaning of words.

I pity them and hate them. They set my teeth on edge, demanding that I, too, become a slave.

Maybe once upon a time, but name one big thing we can do now that won't bankrupt us. What was the last big success we had that was worth the cost in your opinion, Garage?

There are endless private successes, amazing ones, but government run ones? Where are they? Do they have a future not swamped by debt on the backs of our descendants? Where is the example that suggests Obamacare will not blow us up. The cost estimates have already doubled as they always do after the law gets passed, and that's before we even get started. It's a disaster, and will be eventually seen as the biggest mistake in American history, and you, Althouse and millions of others were responsible for it. That's without even considering the priceless costs to individual freedom. Congratulations, yall!

Pogo, Although they are both called professions, there is nothing in common between yours and theirs. I love and owe everything to yours and despise the other. Everyday I'm reminded of this by events large and small. Unfortunately, I'm attacked by the work of lawyers all day long, and only hope that the rare but powerful touch of modern medicine will sustain me against the thugs with words.

garage mahal said...Who but a Class A moron doesn't know that Medicare is subsidized?

Your position, and the position of insurance conglomerates, and the politicians they pay off, are identical. They are laughing at idiots like you all the way to the bank, as they scheme to drain you for every penny they can, while denying you everything you paid for. This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to. Why? We're a stupid country full of stupid people like you.

Who creates wealth? Keep in mind, that in order for any government to provide anything to anybody, it must first take something from someone.

"Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care"

This is the argument that we routinely see, and it is accepted as gospel. But those claiming this are also in the set of people who do use modern health care. Just like the socialite in NYC who didn't know anyone who had voted for Richard Nixon. But, the fact that they don't know anyone who hasn't and doesn't intend on using modern medicine, doesn't mean that there isn't anyone, just like my distant relative (on my mother's mother's side), Hubert Humphrey, never became President.

Worse, the logical inconsistency is that this (demonstrably false) assertion that everyone uses modern medicine sometime in their lives is used to justify forcing people to buy insurance, which is a different good or service entirely. And, that is because there are many more people who go through their adult lives without purchasing health insurance.

You would think that logically, all that it would take would be one counter-example. But, instead, the counter-examples, of people intentionally taking themselves out of the modern health care system, are ignored, and the premise (just falsified) is repeated as if it were gospel truth.

Tim: And you wondered why I don't engage? I don't have enough time to address all the tendentious stupidity wrapped up in that manifesto of ignorance (let alone it completely ignores the fact you do not know that Medicare is subsidized).

Bruce Hayden, you make a good point. I would add that the 'conventional wisdom' also asserts that everyone will eventually need the same amount of health care, cost wise, when this is decidedly not how it plays out in real life. A majority pay in more (including their employer's contribution) than they use. Seriously, $10K+ can go quite a ways in terms of general office visits and prescriptions, which is what most people use their insurance for.

Major incident/disability insurance has been around for 300 years, and I think most of us are happy to pool our resources as a hedge against a major occurrence. But comprehensive health insurance is relatively new, about 50-60 years old, and seems to have exacerbated the problem of health care costs rather than alleviated them. Why inflict such a system on the electorate when its efficacy is unproven at best?

Obamacare is clearly not constitutional under the Commerce Clause because it subjects not buying insurance and thus not engaging in commerce subject to the Commerce Clause. The Commerce Clause will have no limit because it will cover everything -- commerce and not commerce -- if Obamacare is constitutional under the Commerce Clause. I think logic will prevail.

What I don't get, Machos, is why so few are bringing up that health insurance already cannot be sold across state lines. So "interstate commerce" is a non-issue due to this limitation alone. It's not like they can make any claim that insurance policies bought in, say, NH have any bearing on TX because federal law specifically forbids it.

Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care...you just receive the care without paying for it, driving the cost up for the rest of us.

Does my going to a hospital in SC impact somebody in OR? No, it does not.

Therefore, it is not INTERSTATE. Which seems to limit, heavily, what the Federal Government can do. The 10th Amendment ALONE should kill the bill.

Ever find those "mounds and mounds" of evidence to convict the Duke lacrosse players?

Forgot about that. The stance on that issue alone disqualifies her as a serious pundit on legal matters.

Deciding to remove the severability clause should kill the bill if any part is removed. That such a clause is routinely in legislation clearly shows that it was intentionally left out here.

Ah, but ObamaCare doesn't just mandate that I buy insurance it also mandates what kind of insurance I have to buy. So if all I want is to cover myself for catastrophic care and pay a high deductible for routine visits and incidences, and certainly not pay for abortificients, it is up to the HHS Secretary to determine whether I'm "allowed" to do that.

Exactly.

And to follow Garage's logic, a public option THAT WOULD ALWAYS UNDERCUT THE MARKET RATE (see Medicaid) would lead to more and more going for the public option. But don't worry, the 1% can foot the bill. And in the end, everything will be "therapeutic" and "free"

Team Obama is now marketing "Obamacare is a BFD" t-shirts on twitter. I guess what happened to the #ILikeObamacare Hashtag wasn't embarrassing enough. But, in a way, Obama is right. Obamacare is a BFD --

The elite media has tried to downplay reports with false numbers as questionable polls. However, every Bishop from the nearly 200 Diocese in America has sent a formal letter of protest, and the events brought together people of all faiths and races who know get what an existential threat the administration is.

Taranto wrote: That is to say, while she is free to opine on constitutional questions and may even have informed opinions (though she has placed that in considerable doubt), she cannot decide whether ObamaCare is constitutional. Only judges, and ultimately the justices of the Supreme Court, can do that.

I think that's completely wrong. Formally speaking, sure the Supreme Court is the party whose decisions are enacted by the men with guns, but I think it's possible to have a conception of constitutionality (or legality, in fact) that goes beyond what whoever is sitting in the seat of power feels like saying today. Otherwise, what's the point in writing laws or constitutions down in the first place?

Re: Seven Machos:

The concern, I think, for we who oppose Obamacare is that the Court could very well find some other part of the Constitution that allows the law.

If they'd have left it as a "tax" the way it was structured in the earlier drafts of the law, I'm pretty sure it would be Constitutional -- I think there might have been arguments against it, but they'd have been more technical. I mean, it's assessed by the IRS, and I'm pretty sure it ended up in the tax code, so it's a tax in everything but name.

It's just the President's doltish insistence that it's totally not a tax that forced Democrats to restructure it so it's a "shared responsibility payment" or some such newspeak drivel, and has left his cheerleaders pushing this cockamamie Commerce Clause argument.

You know its people like you and Robert Cook who display an open hatred for this country and its citizens yet you still stick around. Kind of like the spoiled brat teenager who hates his parents but sure does like all the support they provide.

Maybe you should man up and find a smarter country to live in. God knows you won't be missed here.

machine said...Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care...you just receive the care without paying for it, driving the cost up for the rest of us.

When did "conservatives" start siding with the freeloaders?

3/23/12 7:55 PM

When did the left start worrying about freeloaders? Next thing you will telling us its time to eliminate the freeloader welfare state.

machine said...Just because you don't buy health insurance doesn't mean you are "not engaging in commerce"...eventually you seek and receive health care...you just receive the care without paying for it, driving the cost up for the rest of us.

Only a progressive would equate regulating commerce between willing parties and compelling parties to engage in commerce.

garage mahal said...Who but a Class A moron doesn't know that Medicare is subsidized?

Your position, and the position of insurance conglomerates, and the politicians they pay off, are identical. They are laughing at idiots like you all the way to the bank, as they scheme to drain you for every penny they can, while denying you everything you paid for. This country can do anything it wants to. It can easily provide a quality affordable health care system for everybody. It just doesn't want to. Why? We're a stupid country full of stupid people like you.

3/23/12 10:32 PM

Yes your argument is at the heart of the matter that we can provide for everyone X benefit. As if we must or as if we should. No we don't and no we shouldn't.

This mentality is the core issue, the belief that our constitution is a charter of positive rights instead of a charter of negative rights. This ultimately is what the court will decide on.

Hmm so we have a law that purports to regulate insurance for the consumer’s benefit but like anyone paying attention knows it is actually more a move to force equality. re: you will not be permitted to buy insurance that covers MORE than a certain level of care. So; you will not 'waste' resources in pursuing long shots to save your, or someone in your family's, life. The savings can then be redistributed or spread so to speak. Also; the law not only regulates this at the insurance level… it also micromanages doctors and hospitals, in the event you got around insurance restriction, to also prevent you from making your own healthcare choices.

This level of coercion by the federal government is unconstitutional. Contract law aside; you no longer have any right to privacy when the government will be making these life and death decisions for you and your family. If they can compel you to not pursue your rational self interest in this; what can not they not do to you and why exactly can they not? The honest answer is there is nothing they can not do to you in any sphere of your personal life. Still; the left will refuse to deal with these questions.

"Funny cause that's exactly what I suggested but evidently a simple solution was too difficult for the genius you voted for."

Glad you brought that up. I too wouldn't mind a national level of minimum care provided by the government.... I just don't like Obamacare for the reasons I wrote in the post above this... plus others I have not (re: reducing healthcare to a public utility will crush it and slow medical research)...

"if just the individual mandate part fails and the rest stands, those who would be required to start paying could still get a free ride."

Hmmm. So if the cost estimates of this have already nearly doubled since the "pass it to see what's in it" phase, what kind of cost increase would we see if no one was required to pay in?By the way, anyone catch reporters asking Carney Or Obama about the revised cost estimate?

Medicare all y'all?What good is coverage if no one will see you. Medicare and medicaid, insolvent as they are..functions to the degree it does because providers have some degree of cost shifting to private plans possible. Remove that and watch the providers bail or restrict access. it already happens with some treatment centers having a policy that allows 50% ratio of public to private. They literally have to check the numbers before allowing a Medicare patient an appointment slot. Some providers will just outright not not accept medicaid patients.People refer to the insinuated rationing of Obama's take a pill instead discussion..I have had a physician refer to Medicare rationing to my face.So if you like medicare, consider seeking ways to allow it to exist in a mixed system as opposed to holding it up for example.But more importantly, what will happen to the thousands of new IRS hirees if O-care doesn't stick?

The argument to throw out the whole law due to lack of severability will already have been made. If the SCOTUS rejects it the first time around, that's it (at least until the court's composition changes).